Saturday, October 31, 2015

6-day-old Baby NOT a Person, Says NY Appeals Court

A pregnant Jennifer Jorgensen crashed her car in 2008 while on drugs and/or alcohol causing her near-full-term baby to be delivered by emergency C-section. Jorgensen was initially sentenced to 3 to 9 years in prison for second-degree manslaughter because her baby girl died six days afterward. However, the highest court in the state of New York overturned that conviction, because the case hinged on the question of intent of the state law "to hold pregnant women criminally responsible for engaging in reckless conduct against themselves and their unborn fetuses, such that they should be subject to criminal liability for prenatal conduct that results in postnatal death? Under the current statutory scheme, the answer to this question is no."

Prosecutors argued that Jennifer Jorgensen was speeding, intoxicated, and unbelted when she crossed into traffic in 2008 and hit another vehicle head-on, killing Mary and Robert Kelly. Jorgensen, of Long Island, was eight months’ pregnant at the time.

She was acquitted of manslaughter in the deaths of the Kellys but convicted of recklessly causing her daughter’s death.

But the Court of Appeals, in a 5-1 ruling, said the state Legislature didn’t intend to hold a pregnant woman responsible for such harmful conduct to herself or her fetus unless it’s intentional.

Any imposition of criminal liability for actions of pregnant women where a child later dies from injuries suffered while in the womb needs to be clearly defined by lawmakers, Judge Eugene Pigott Jr. wrote. “It should also not be left to the whim of the prosecutor.”

“Conceivably, one could find it ‘reckless’ for a pregnant woman to disregard her obstetrician’s specific orders concerning bed rest; take prescription and/or illicit drugs; shovel a walkway; engage in a contact sport; carry groceries; or disregard dietary restrictions,” Pigott wrote. “Such conduct, if it resulted in premature birth and subsequent death of the child, could result in criminal liability for the mother.”

At present, that’s not in New York’s criminal law, Pigott wrote.

In a dissent, Judge Eugene Fahy wrote that he could not join in a ruling that analyzes New York statutes to determine that the 6-day-old child was not a person because she was unborn when her mother crashed. “The pertinent parts of the Penal Law speak to victims as they are, not as they were at the time the acts giving rise to the crime were committed.”

In June 2009, Jorgensen was indicted for aggravated vehicular homicide, driving under the influence of drugs and alcohol and — charges related to the death of the infant — manslaughter in the second degree and endangering the welfare of a child.

Her first trial ended with a hung jury. In a 2010 retrial, Jorgensen was convicted on only one charge: second-degree manslaughter for causing the death of her daughter. A 3- to 9-year sentence was stayed pending her appeal. An appellate court subsequently upheld her conviction.

The court said that Suffolk County prosecutors "concede that, had defendant not consented to the cesarean section with the result that the child be born alive, she would not have been prosecuted for manslaughter in the second degree." Ruling against Jorgensen, then, "would create a perverse incentive for a pregnant woman to refuse a cesarean section out of fear that if her baby is born alive she would face criminal charges for her alleged reckless conduct, jeopardizing the health of the woman and the unborn fetus."

State legislators have put down laws to criminalize self-abortions, but has left the question "ambiguous" as to whether it's a crime to be reckless while pregnant.

"We conclude that the legislature did not intend to impose greater punishment on pregnant women for their alleged reckless conduct toward a fetus than for their intentional conduct," [Judge] Pigott wrote.

And since the baby did not die while in the womb, Jorgenson "could not have been prosecuted under the manslaughter statute because the fetus would not have fallen under the definition of a 'person'" under the law, the said.

Judge Eugene M. Fahey Fahey dissented, stating: "I conclude that the baby was a person in the eyes of the penal law, that the mother can be held accountable ... for the baby's death, and that the appellate division's order should be affirmed."